INDEX

INTRODUCTION

ALTERNATIVE DISPUTE RESOLUTION IN INDIA

EXISTING STATUTORY PROVISIONS FOR ADR IN LAW IN INDIA

FAMILY DISPUTES

FAMILY DISPUTES RESOLUTION PROCESS

MEDIATION AND CONCILIATION

RECONCILIATION

CONCLUSION

BIBLIOGRAPHY
INTRODUCTION

India is a land of diversities with several religions. The oldest part of the Indian
legal system is the personal laws governing the Hindus and the Muslims. The Hindu
personal law has undergone changes by a continuous process of codification. The
process of change in society has brought changes in law reflecting the changed
social conditions and attempts the solution of social problems by new methods in
the light of experience of legislation in other countries of the world. The Muslim
personal law has been comparatively left untouched by legislations.
The Indian legal system is basically a common law system. The Indian Parliament
has enacted the following family laws which are applicable to the religious
communities defined in the respective enactments themselves. A brief description
of each of these separate enactments is given as hereunder.
The main marriage law legislation in India applicable to the majority population
constituted of Hindus is known as The Hindu Marriage Act, 1955, which is an act to
amend and codify the law relating to marriage among Hindus. Ceremonial marriage
is essential under this act and registration is optional. It applies to any person who is
a Hindu, Buddhist, Jaina or Sikh by religion and to any other person who is not a
Muslim, Christian, Parsi or Jew by religion. The act also applies to Hindus resident
outside the territory of India. Nothing contained in this act shall be deemed to affect
any right recognized by custom or conferred by any special enactment. Likewise, in
other personal law matters, Hindus are governed by the Hindu Succession Act,
1956, which is an act to amend and codify the law relating to intestate succession
among Hindus. The Hindu Minority and Guardianship Act, 1956 is an act to amend
and codify certain parts of the law relating to minority and guardianship among
Hindus and the Hindu Adoptions and Maintenance Act, 1956 is an act to amend and
codify the law relating to adoptions and maintenance among Hindus.
ALTERNATIVE DISPUTE RESOLUTION IN INDIA

It is believed that the development of the country can be also understood by

observingthe capability of its legal system to render effective justice. The practice
of amicable resolution of disputes can be traced back to historic times, when the
villages disputes were resolved between members of particular relations or
occupations or between members of a particular locality. In rural India, the
panchayats (assembly of elders and respected inhabitants of the village) decided
nearly all the disputes between the residents of the village, while disputes between
the members of a clan continued to be decided by the elders of the clan. These
methods of amicable dispute resolution were recognized methods of administration
of justice and not just an alternative to the formal justice system formed by the
sovereigns, feudal lords or the adalat systems initiated by the British and the formal
court system. The two systems continued to function analogous to each other. The
process followed by the traditional institutions was that of arbitration and
conciliation, depending on the character of dispute.
In India, there is a massive legal system comprising nearly 15,000 courts across the
country. It is the constitutional obligation of the judiciary to exercise its jurisdiction
to reaffirm the faith of the people in the judicial set up. Therefore, evolution of new
juristic principles for dispute resolution is not only important but imperative. In
India the need to evolve alternative mechanisms simultaneous with the revival and
strengthening of traditional systems of dispute resolution has been reiterated in
reports of expert bodies1. Each of these reports saw the process of improving access
to justice through legal aid mechanisms and alternative dispute resolution (ADR) as
apart of the systemic reform of the institution of the judiciary coupled with
substantivereforms of laws and processes.
EXISTING STATUTORY PROVISIONS FOR ADR IN LAW
IN INDIA

The sensitivity of the legislature to providing speedy and efficacious justice in India
is mainly reflected in several enactments which are enumerated as hereunder:
1. Arbitration under The Arbitration and Conciliation Act, 1996;
2. Settlement under Order XXXIIA of the Indian Code of Civil Procedure, 1908;
3. The incorporation2 of section 89 in the traditional Civil Procedure Code (CPC)
read with Order X Rules I-A, I-B, and I-C for Settlement of Disputes outside court.
4. The Establishment of LokAdalat under The Legal Services Authority Act, 1987;
looks to mediation, conciliation and informal settlement of disputes in litigation.
5. Reconciliation under Sections 23 (2) and 23 (3) of the Hindu Marriage Act, 1955
as also under Section 34 (3) of the Special Marriage Act, 1954;
6. Duty of family court to make efforts for settlement under Family Courts Act,
1984.

Family Disputes

In earlier days the elder persons in the joint family will act as mediator in resolving
almost all family disputes within the joint family but in the present nuclear family
set up, the non presence of such an effective mediator is deeply affecting the family
atmosphere a lot and there is no alternative to resolve such disputes Other than an
effective mediation by a trained mediator

What is a family dispute?

 All families at some time experience difficulties and stress. Family disputes can be
about almost anything. Some of the most common topics in mediation &
Conciliation on Family Disputes are:

1. Disputes among Husband and wife

2. Childrens education, health and welfare

3. Contact with children (separated couples or extended families)

4. Financial support for children (separated couples)

5. Lack of trust

6. Parenting differences

7. Disputes while partition including Property settlement

8. Disputes on taking care of parents

9. Relationship breakdown etc..

Issue like residence decisions, distribution of care giving responsibilities, safety

and health concerns, wills and estates, the sale of the family home and more can
divide a family for years to come. When communication is difficult and critical
decisions are put on hold, families may need the help of a skilled mediator &
Conciliator to get them unstuck so they can move forward. In mediation and
conciliation, people deal with the problems and issues under dispute in a timely
fashion and in privacy. It is a cooperative rather than an adversarial process, so
participants are often able to repair their strained relationships. Because family
members develop their own solutions, which reflect their familys unique
satisfaction with the outcome is quite high and these resolutions tend to the
workable and long lasting.1

1
ALTERNATIVE DISPUTE RESOLUTION IN INDIAN FAMILY LAW
REALITIES, PRACTICALITIES AND NECESSITIES
Family Dispute Resolution Process.

For enforcement and adjudication of all matrimonial and other related disputes of
any person in any of the different religious or non-religious communities under the
respective legislations mentioned above, the designated judicial forum or court
where such petition is to be lodged is prescribed in the respective enactments
themselves.
There is an organized system of designated civil and criminal judicial courts within
every state in India which works under the overall jurisdiction of the respective high
court in the state. It is in the hierarchy of these courts that all family and
matrimonial causes are lodged and decided. In addition, the Indian Parliament has
enacted The Family Courts Act, 1984 to provide for the establishment of family
courts with a view to
promote conciliation in and to secure speedy settlement of disputes relating to
marriage and family affairs. Despite the existence of an organized, well regulated
and established hierarchy of judicial courts in India, there are still unrecognized
parallel community and religious courts in existence whose interference has been
deprecatedby the judicial courts since such unauthorized and unwarranted bodies
work without the authority of law and are not parts of the judicial system.

Family Dispute Resolution is process by which people who are in conflict can be helped to
communicate with each other about what is important for them and how to make decisions
about resolving their dispute. Family Dispute Resolution can be used in a wide range of
situations including Family Law, neighborhood, commercial and workplace disputes,
parent/adolescent conflicts, problems at school and issues concerning the care of the elderly.

By
Anil Malhotra and RanjitMalhotra
Mediators assist them to sort out the issues and come up with acceptable solutions, and make
mutually satisfactory agreements. The family dispute resolution process involves: the parties
listening to each others point of view without interruption, identifying issues with need to be
resolved, sharing of relevant information exploring ideas and options, testing possible solutions,
putting decisions and agreements in writing. Thus Mediation means a process in which the
parties appear before an impartial third party who has no authority to adjudicate the dispute but
who, through the application of standard mediation techniques generally accepted within the
professional mediation community, assists the parties in identifying the issues, and then
interests, exploring settlement alternatives, and fashioning the basis of an agreement.2

Mediation

A simple, relatively inexpensive from of dispute resolution by communication. A way to

resolve differences with the help of an independent, unbiased mediator usually a lawyer or
mental health professional by giving an opportunity to teach their own solution by the parties to
the dispute.

Conciliation

Conciliation is a process in which the conciliator plays proactive role to bring about a
settlement. Conciliation differs from Mediation in that the main goal is to conciliate, most of
the time by seeking concessions. In Mediation, the mediator tries to guide the discussion in a
way that optimizes parties need, takes feelings into account and reframes representations.
Where while defining Mediation and Conciliation, it is stated that Mediation is way of settling
disputes by a third party who helps both sides to come to an agreement, which each considers
acceptable. Mediation can be evaluative or facilitative. Conciliation, it is said, is a procedure
like Mediation but the third party, the conciliator, takes a more interventionist role in bringing
the two parties together and in suggestion falling into disuse and process which is pro-active is
also being regarded as a form of Mediation. One significant difference between conciliation and
Mediation lies in the fact that conciliators possess expert knowledge of the domain in which
they conciliate. The conciliator can make suggestions for settlement terms and can give advice
on the subject-matter. Conciliators may also use their role to actively encourage the parties to
come to a resolution. In certain types of dispute the conciliator has a duty to provide legal

2
http://guides.library.harvard.edu
information. This helps any agreement reached to comply with any relevant statutory
framework pertaining to the dispute. Therefore conciliation may include an advisory aspect.

Both Mediation and conciliation serve to identify the disputed issues and to generate options
that help disputants reach a mutually-satisfactory resolution. They both offer relatively flexible
processes; and any settlement reached should have the agreement of all parties. This contrasts
with litigation, which normally settles the dispute in favor of the party with the strongest
argument.

When the parties to the dispute need to find a way to communicate, when they need to find
solutions, when they need to manage stress and high emotions, when they need to balance
future plans with practical decisions, then that will be the best time to put it before
mediation/conciliation. This is the perfect time for an independent, unbiased mediator to step in
and help them to establish and identify their needs for the future, communicate those to the
other party without animosity and friction, and for enable them to work together, in the best
possible way, in the best interests of themselves and for the betterment of their children. More
than any thing, children want their parents to get along. If they cant have first prize of Mum
and Dad getting back together, an amicable relation ship is the next best thing.

People often assume that family disputes must be settled in court by a judge. The reality is that
family disputes should be settled before they reach the courtroom. Mediation is a process where
a neutral third party with no decision making power the mediator helps people to negotiate a
settlement to their dispute. One of the most important differences between mediation and the
court process (which is called litigation) is that mediation allows people to reach agreements
that meet everyones interests. The court process, on the other hand, focuses on opposing legal
rights and obligations of the parties. In litigation, one person wins and the other person loses,
whereas mediation will creates a win-win situation.3

Reconciliation

Among the indian matrimonial statutes the provision of reconciliation is enacted

only in the Hindu Marriage Act and the special marriage act4. The provision is

3
http://familylawyers.in/Article.html by Latha.K
4
Section 34(2)
identical, the substantive provision runs as under.
Before proceeding to grant relief under this act it shall be the duty of the court in the
first instance in every case where it is possible so to do consistently with the nature
and circumstances of the case to make every endivour to bring about a
reconciliation between the parties.5

Under the Special Merriage Act and the Hindu Merriage Act no reconciliation
endeavor by the court is required when the ground of divorce is insanity, vanerial
disease, leprosy or unheard absence. Additianally under The Special Merriage Act
the reconciliation method is also not applicable when the ground for divorce is
seven years imprisonment of the respondant .

In Ravana v. Ravana6case the court observed tat it is a petition for restition of

conjugal rights no reconciliation efforts need be madesinceby granting of the decree
that purpose would be achieved. It is submitted that this is not the correct
viewitisnot necessary that a spouse will be reconciledon passing on the decree of
the restitution of conjugal rights. He or She may not abide by the decree. It
issubmitted that here too the court should endeavor to effect reconciliation. The
Mysore High Court takes the view that the applet court has no such power when the
trial court has not erred in law or procedure7.

The Allahabad High court takes the view that appellate court too has power and
duty to effect reconciliation8. In Trilok v. Savitri9 The Allahabad High court held
that reconciliation is only to be attempted only if the court intends to grant relief.

5
Section 23 (2)
6
AIR 1966 AP 73
7
Jivubai v. Niggappa AIR 1963
8
Trilok v. Savitri
9
AIR 1972 All 53
CONCLUSION

MEDIATION is not the answer to every dispute between the people in Family. In some
situations the Courts are absolutely necessary and the only recourse for a person is to file
lawsuit. LITIGATION is not the answer to every dispute either. MEDIATION offers the most
practical solution in that majority of disputes. The opportunities to be personally creative in
seeking constructive solutions to the parenting and economic crises of serration and divorce are
legion. Check them out and do homework. There is a better way then battling in the courts.
What the parties to the dispute need are the inclination to evaluate their options both in terms
of process and substantive dispositions.

In other words experts may not be able to save marriages but they may help parties
to resolve issues relating to finance and custody of childrenand allied matters as an
aftermath of divorce with the minimum possible anxity to parties possible.
BIBLIOGRAPHY

http://familylawyers.in/Article.html
http://guides.library.harvard.edu/
https://indiankanoon.org
Family Court Review
The Family Court Review is an interdisciplinary journal focusing on the
practice of family law in the courts.
http://www.ssrn.com/law-society-family-law.html
Family Law By ParasDiwan
The Lectures By Dr. Kusum (family law)
https://www.iafl.com/cms.../alternative_dispute_resolution_in_indian_fa
mily_law.pdf